Montgomery trumps Bolam

The Montgomery judgement has kicked Bolam and Sidaway into the long grass – we are now all barefoot healthcare operatives, the face of clinical practice has changed utterly, and the clinical negligence lawyers can now order their new Bentley Continentals.

Welcome to the caring, sharing world of informed consent where you have to make the right judgement about the quantity and quality of the information that you provide to the patient so that any ‘therapeutic privilege’ that might have helped in the past to guide you has gone the same way as total colectomy for rheumatoid arthritis. Finally, remember that the Claimant’s case was lost both at the first trial and at the Appeal to the High Court in Scotland – it took the unanimous decision of the UK Supreme Court finally to deliver Justice not Law, to quote The Godfather. Medical Negligence in Scotland may be a sleeping giant that deserves soon to be awakened.

This is an important blog and I recommend that you also read the excellent accompanying article. The Royal College of Surgeons of England have written a very helpful report on this subject, which I also commend to you.
There is no question that more time and attention now has to be paid to the provision of fully informed consent, which should be given well ahead of any procedure, to allow the patient time to reflect and ask supplementary questions. Written information detailing expected outcomes and all possible complications should also be provided.
Some have commented that in our busy practice there is insufficient time to provide all this information to patients, however, as the Mansells’ point out, there is now a legal requirement for clinicians to provide more patient-orientated information specific to the individual undergoing the procedure. There is no doubt that we will all have to change our practice.

The excellent Mansell paper concludes that: “the absolute requirement for obtaining truly informed consent in a busy surgical unit may be seen as an onerous and resource-consuming process, although it actually has the potential to help stem the rising tide of medical negligence litigation”.
As a clinical negligence barrister I have three comments in particular.
Firstly long experience shows me that the uncomprehending resentment of an unfortunate outcome that frequently drives patients to lawyers could, and often would, have been altogether avoided by a reasonably full explanation beforehand of the risks as well as the benefits, and of the uncertainty of a successful result.
Secondly it is saddening to hear that what ought in an advanced civilised society to be seen as obviously right and necessary should be met with resistance and in some quarters even derision.
Thirdly the unhappy patient who alleges successfully that she wasn’t adequately informed in advance will almost always lose her case at the causation hurdle, which requires her additionally to prove that IF the right information HAD been given she would have declined the proposed treatment and so avoided the injury. In almost all decided cases the judges not surprisingly find that the treatment in question was prospectively right and reasonable to propose, and was needed by the patient, who would for those reasons, if adequately informed, have consented to it.

What an excellent review article. This emphasizes how important consent has become. Time is needed to consent appropriately. Although it is essential that consent is obtained by a senior doctor with an understanding of the procedure this puts additional pressure on the pressed clinician. If time is provided for consenting in the out-patient clinic the number of patients seen will fall. This will thus increase the length of waiting lists to be seen. There has to be a trade-off somewhere.
Defensive medicine has crept into clinical practice such that decision making skills are being subsumed to the results of investigations. It seems that the CT scan has become the default test when a decision is needed as to what to do next when often clinical experience and judgement is what is needed. I am often reminded that if you didn’t do the test and something went wrong that criticism will be levelled. With a shortage of resources, insufficient staff and increasing pressures on the service something will need to give.
To be Montgomery compliant in every case is a challenging goal given the workload but nevertheless we will have to try to achieve this goal for the protection of both the patient and clinician.

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